- 7 - property, after the death of the payee spouse. Sec. 71(b)(1)(A)- (D). The test under section 71(b)(1) is conjunctive; a payment is includible in income as alimony only if all four requirements of section 71(b)(1) are met. See Johnson v. Commissioner, T.C. Memo. 2006-116; Jaffe v. Commissioner, T.C. Memo. 1999-196. The characterization of the payments as "alimony" in the divorce or separation instrument does not affect their treatment for Federal income tax purposes; the test is whether the foregoing requirements are satisfied. Hoover v. Commissioner, 102 F.3d 842, 844 (6th Cir. 1996), affg. T.C. Memo. 1995-183. It is undisputed that the MSA satisfies the definition of a divorce or separation instrument. See sec. 71(b)(2). The $1,400 monthly payments at issue herein were made in cash, the agreement pursuant to which the payments were made did not expressly designate that they were excludible from petitioner's income and nondeductible by Mr. Burns,3 and petitioner and Mr. Burns were living separate and apart. Thus, the payments received by 3 The qualified divorce instrument must contain a clear direction with regard to tax effect to negate alimony treatment if the payment would otherwise satisfy the requirements of sec. 71. See Richardson v. Commissioner, 125 F.3d 551 (7th Cir. 1997), affg. T.C. Memo. 1995-554; see also Estate of Goldman v. Commissioner, 112 T.C. 317 (1999) (finding clear and express direction from language of the agreement specifying that all property transfers in the settlement agreement, including a series of cash payments that would otherwise satisfy sec. 71(b)(1)'s requirements, were to be treated as "nontaxable" events under sec. 1041), affd. without published opinion sub nom. Schutter v. Commissioner, 242 F.3d 390 (10th Cir. 2000).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011